I am a Father involved in a custody battle: I have been appealing each step of the process and recently filed an Objection to Referee's Recommendation focusing on five of the points for the best interests of the children. I received a response from other party today and they addressed all of the points. It is my understanding that only the points I objected to are to be discussed, is this correct? Is the responding party supposed to limit their response to what I specifically objected to or can they represent their thoughts on all of the points? If they are incorrect, what can we do to make sure only the appropriate topics are discussed?
Pursuant to MCR 3.215(F)(2), the court may, in its discretion:
(a) prohibit a party from presenting evidence on findings of fact to which no objection was filed;
(b) determine that the referee's finding was conclusive as to a fact to which no objection was filed;
(c) prohibit a party from introducing new evidence or calling new witnesses unless there is an adequate showing that the evidence was not available at the referee hearing; and
(d) impose any other reasonable restrictions and conditions to conserve the resources of the parties and the court.
However, the limitation is entirely in the Judge's discretion.
DISCLAIMER: This answer is provided as general information, which may not be appropriate for the specific facts of your particular situation. No attorney-client relationship has been established based on this limited communication. You are advised to consult with an attorney in your jurisdiction before taking any action or inaction that may affect your legal rights. www.hecklerlawoffice.com
Did the responding party also file an objection to the points raised in the reply to your objection? Although Christine is correct under the court rule that the court may limit a "de novo" hearing, in addition to MCR 3.215, the court may also rely on MCL 552.507, which provides, in pertinent part:
(5) A hearing is de novo despite the court’s imposition of reasonable
restrictions and conditions to conserve the resources of the parties and the court if
the following conditions are met:
(a) The parties have been given a full opportunity to present and preserve
important evidence at the referee hearing.
(b) For findings of fact to which the parties have objected, the parties are
afforded a new opportunity to offer the same evidence to the court as was
presented to the referee and to supplement that evidence with evidence that could
not have been presented to the referee.
(6) Subject to subsection (5), de novo hearings include, but are not limited
to, the following:
(a) A new decision based entirely on the record of a previous hearing,
including any memoranda, recommendations, or proposed orders by the referee.
(b) A new decision based only on evidence presented at the time of the de
(c) A new decision based in part on the record of a referee hearing
supplemented by evidence that was not introduced at a previous hearing.
Basically, it is within the court's discretion what type of evidence and de novo review will be allowed. If your county is anything like mine, if someone files an objection and demand for de novo review, regardless of what the objections were (as long as they complied and were concise under MCR 3.215), what the reply to the objections were, the court will hear the entire matter "fresh" and review the transcript from the FOC hearing.
There is significant case law that directly addresses your point that the response is limited to your objection, particularly if they didn't file an objection as well, but short of bringing it to the court's attention and request for the court to use is discretionary abilities under MCR 3.215 and MCL 552.507 everything is probably fair game.
Talk to the family division clerk - they are valuable resources. Ask her/him what the judge's usual policy is regarding de novo hearings and whether they only supplement the FOC hearing with additional testimony from the parties, hear the matter "fresh" and all over again with no regard to the the FOC hearing, or merely by review of the FOC hearing transcript.
Additionally, the Michigan Court of Appeals website is a great, FREE, resource that allows you to search the text of all opinions - both published and unpublished (the majority of your family law cases are unpublished so make sure you check the box to search unpublished opinions as well).
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